The two days which the International Court of Justice (ICJ) has set aside for hearing on South Africa’s 84-page application on what the latter terms as Israel’s genocide of the Palestinians in Gaza begin Thursday.
The ICJ is one of the six principal organs of the United Nations and is different from the International Criminal Court (ICC) which tries individuals for war crimes and crimes against humanity.
The ICJ has ruled on the genocide matters concerning Cambodia, Rwandan, Serbian etc in the past and more recently in March 2022, it had upheld Ukraine’s application accusing Russia of genocide.
Israel would present its defence in front of the ICJ in Hague, bound as it is by the statutes of the ICJ being a party of the genocide convention.
On genocide, the international law upholds the definition laid out in Article II of the UN’s Genocide Convention and the Rome Statute of the International Criminal Court.
The definition that genocide means acts “committed with intent to destroy, in whole or in part, a national, ethnical racial or religious group” is widely accepted by more than 130 countries including the US, UK, Germany, France etc.
The convention was formalised on December 9, 1948 in reaction to the Holocaust which killed millions of Jews during the World War II.
South Africa claims it tried on multiple occasions to express its concerns to Israel on its military actions in Gaza but didn’t receive any response.
The country sent a note verbale—a formal, unsigned diplomatic note—on December 21 last year to the Israeli embassy raising its concerns that Israel was breaching the threshold on genocide.
Again, the application says, Israel didn’t respond directly to the diplomatic note.
South Africa has built its case on genocide against Israel on following lines:
That Israel’s actions are “genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group.”
“Against a background of apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination, and the ongoing denial of the right of the Palestinian people to self-determination — Israel, since 7 October 2023 in particular, has failed to prevent genocide,” the application says.
That Israel has also injured more than 55,000 Palestinians in the enclave—besides killing some 23,000 most of whom are Palestinian women and children—is a fit case of “causing bodily harm” as laid out by the Genocide Convention, says South Africa in the application.
Further, “there are no functioning hospitals in the North of Gaza, in particular, such that injured persons are reduced to `waiting to die’ , unable to seek surgery or medical treatment beyond first aid, dying slow, agonising deaths from their injuries or from resultant infections,” the application adds.
Other “genocidal acts” highlighted are mass forced displacements and bombing of residential areas, deprivation of access to adequate food and water, imposing measures intended to prevent Palestinian births.
“Across Gaza, Israel has targeted the infrastructure and foundations of Palestinian life, deliberately creating conditions of life calculated to bring about the physical destruction of Palestinian people,” the application says.
The very foundational civil system in Gaza—water systems, agricultural lands, bakeries, mills, neighbourhoods, some 70% homes destroyed, 85% of the 2.3 million population forced into mass displacement—is also cited in the application.
Israel has also bombed mosques, churches, and universities, among more than 100 heritage sites, adds the application.
The Question of Proving Intent
The case of genocide must prove the intent which Israel’s military repeatedly claims isn’t the case with them as they are not targeting the civilians but only Hamas.
South Africa’s application claims there have been multiple references by Israeli prime minister Benjamin Netanyahu, the statement by its president Issac Herzog that “an entire nation (Palestine) out there is responsible” and defence minister Yoav Gallant’s claim that Israel was fighting “human animals” which prove its intent.
Israeli national security minister Itamar Ben Gvir in a televised address said Israel would destroy Hamas, including “those who celebrate…support and those who hand out candy—they’re all terrorists and they should all be destroyed.”
Israel’s agriculture minister is on record for having said “we are now actually rolling out the Gaza Nakba”, a reference to the killing and forced displacement of hundreds of thousands of Palestinians during Israel’s creation in 1948.
SA Not Alone On Genocide
Several high-ranking UN officials have warned that Israel is committing genocide.
Eight UN special rapporteurs on November 2, 2023 said they “remain convinced that the Palestinian people are at grave risk of genocide.”
On November 16, 2023, UN special rapporteurs warned that Israel’s actions “point to a genocide in the making.”
Many presidents of other countries, such as Algeria, Bolivia, Brazil, Colombia, Cuba, Iran Turkey and Venezuela have all termed Israel’s actions as genocide.
Countries such as Malaysia and Turkey are backing South Africa—and most countries in the UNGA have told Israel to stop genocide.
More than 800 scholars have penned a letter warning that Israel was committing genocide against the residents of Gaza—the scholars included prominent Holocaust scholars and experts on genocide.
Palestinian Authority president Mahmoud Abbas of course has termed it as genocide in Gaza.
Craig Mokhiber, the director of the New York Office of the High Commissioner of Human Rights (OHCHR), resigned from his post citing the “text-book case of genocide,”
Incidentally, there is another lawsuit in the United States, filed by Palestinians, accusing the US of also being guilty of perpetrating the genocide having provided Israel with military, financial and diplomatic support.
As could be expected, Israel has badmouthed South Africa’s move and accused them of being complicit with Hamas! They have termed it as an “absurd blood libel.”
Israel’s principal ally, the United States, of course is likewise frothing in the mouth. John Kirby, the White House National Security Council spokesperson, has described South Africa’s case as “meritless, counterproductive and completely without any basis in fact whatsoever (sic).”
Former UK prime minister Boris Johnson has condemned a Metropolitan Police investigation into Israel’s war crimes, claiming it to be a “worrying politicisation” of the police force.
Why South Africa?
South Africa has taken the lead on the matter because they themselves fought a liberation struggle for decades against a powerful apartheid regime which was nuclear-armed as Israel is.
The apartheid regime in South Africa was likewise backed by all major Western powers and yet in the end it had to surrender to the will of the people.
The coming days would be the litmus test of international justice system.
If it doesn’t take a decisive stand, or drags the matter, it would stand discredited—more so since South Africa has asked for Israel to suspend its military actions till ICJ makes the judgement.
Of course the ICJ decisions are not enforceable. Israel could lose the case and still continue with its genocidal operations.
Yet if the ICJ rules against Israel, it would become a pariah-state around the globe and US would take a beating for siding with an indicted genocidal regime.